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How Do You Hire H-1B Cap Exempt Candidates?

Introduction

H1B Cap is one of the biggest concerns both for prospective employers and would-be employees.

Employers seeking H-1B visas for prospective employees face significant difficulties due to the limited numbers of H-1B’s available in the H-1B quota and the fact that the number of H-1B petitions filed reaches the maximum cap within the first few days of filing.

H-1B Cap Exempt Candidates How Do You Qualify And Hire Them?

While the H-1B cap is currently set by statute at 65,000, it is important for employers to realize that there are several H-1B Cap Exempt scenarios.

A clear understanding of these exemptions available would help employers increase the hiring of H-1B candidates even when the H-1B cap is exhausted.

Three Suitable H-1B Cap Exempt Hiring Scenarios

Not every H-1B petition is subject to the cap.

There are two broad classifications of H-1B cap exempt petitions.

Petitions filed on behalf of H-1B cap exempt candidates

Petitions filed by H-1B cap exempt employers

DID YOU KNOW? The H-1B program is designed to allow US employers to hire foreign nationals to fill positions within the US workforce that are called “specialty occupations”.

In this article, we take a look at the candidates who are exempt from the H-1B cap. Click here if you want to learn more about H-1B cap exempt employers.

1. Candidates Inside The U.S. Who Were Already Counted Against The H-1B Cap

Hire: H-1B candidates who have been counted against the H-1B cap in the last six years.

Why: They are exempt from the H-1B cap and will not be counted a second time.

Regardless of whether the H-1B cap is reached, employers may file an H-1B petition seeking amendments, extensions, and/or change of employer on behalf of foreign nationals who have been counted against the cap in the last six years.

Regardless of the H-1B cap, USCIS will continue to process petitions to:

Extend the amount of time a current H-1B worker may remain in the United States.

Amend the terms of employment for current H-1B workers.

Allow current H-1B workers to change employers.

Allow current H-1B workers to work concurrently in a second H-1B position.

Note: While filing an H-1B petition seeking a change in employer, petitioners should verify that the foreign national is not transferring from a cap exempt employer or exempt position. If the beneficiary was not counted towards the cap previously, he or she is subject to the H-1B cap restrictions, and employers will not be able to file a transfer petition on their behalf unless the cap is open.

IMPORTANT Under the provisions of American Competitiveness in the 21st Century Act (AC21), an H-1B candidate may begin working for the new employer as soon as the new employer files the H-1B petition with USCIS.

This means the H-1B candidate does not have to wait for the new H-1B petition to be approved before commencing employment with the new H-1B employer.

2. Candidates Outside The U.S. Who Were Previously Granted H-1B Status

Hire: Candidates who were previously granted status as an H-1B nonimmigrant in the past 6 years and are currently living abroad.

Why: They are not subject to the H-1B cap and can reclaim the remaining portion of the six years.

Even after the H-1B cap is reached, employers may continue to file H-1B petition on behalf of foreign nationals who are currently outside the U.S., as long as they held H-1B status during the past six years, and have not exhausted the full six years.

DID YOU KNOW? Foreign nationals outside the US who have held H-1B visa status during the past six years and have not exhausted the full six years, and have spent a full year outside the US since the day of their last exit from US in H-1B status have the option of claiming the remaining portion of their six years or subjecting themselves to the cap again and seeking a new full 6 years if the cap is still open.

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3. STEM Students Under F-1 OPT

Hire: Foreign students in F-1 status, who have completed a qualifying Science, Technology, Engineering or Mathematics (STEM) degree, and are in an approved post-completion OPT period based on a designated STEM degree.

Why: They are eligible to apply for a 17-month STEM extension of their post-completion OPT for a total period of 29 months on OPT.

If the cap has reached before the employer could file an H-1B petition on the behalf of these H-1B candidates, the students can avail the 17-month STEM extension of their post completion OPT, allowing them to remain and work in the US until the beginning of the next H-1B cap season.

Conclusion

If you think that your organization or your potential employee qualifies for H-1B exempt status we can help with the analysis so you can be sure. Filing a petition without a clear answer on this question can lead to a waste of time, resources and money.

Fortunately, there are candidates who are exempt from the H-1B cap.

Contact VisaPro if you have any questions regarding the H-1B Cap, or need help in hiring and filing the H-1B Cap Exempt petitions.

Our experienced Immigration attorneys are always there to assist you.

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